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Creek Repair/Rock Slope Protection

Appeal Brief Appeal Letter

Appeal Brief

DesastreFEMA-1044-DR
ApplicantContra Costa County Department of Public Works
Appeal TypeSecond
PA ID#013-92100
PW ID#28348
Date Signed1997-10-02T04:00:00
Citation: Appeal Brief; Second Appeal; Contra Costa County Department of Public Works; FEMA-1044-DR-CA, PA 013-92100

Cross-Reference: DSR 28348; Creek Repair; Rock Slope Protection (RSP); Dewatering; Engineering Costs

Summary: Following the heavy rains and flooding of January 1995, in Contra Costa County (County), California, FEMA prepared DSR 28348 for $11,218 to restore Rodeo Creek's damaged channel embankment. After review, FEMA reduced the DSR to $793.55 by substituting unclassified fill protection for the proposed RSP and eliminating the other associated costs. The revised DSR was less than $1,000, therefore, FEMA funding was reduced to $0. The State submitted the first appeal to FEMA on January 18, 1996, requesting reinstatement of the original level of funding. The basis of the appeal was inconsistency in FEMA's application of earthen channel repair standards. The first appeal was supported by documentation of the County's earthen channel rip rap policy (adopted after the disaster). The Regional Director denied the first appeal because the County's policy on rip rap of earthen channel repair did not meet the regulatory requirements of 44 CFR 206.226 (b) and the County did not provide "documented justification" that engineering, dewatering, environmental processing, and traffic control costs were essential to restore the creek bank. The State transmitted the subgrantee's second appeal on April 11, 1996. The basis of the second appeal is that RSP, as well as engineering, dewatering and environmental processing costs, were essential to repair the damage described in DSR 28348. The subgrantee did not present additional information to support its appeal.

Issue:Was the County's channel repair policy uniformly applied, enforced and in effect at the time of the disaster?

Finding: No. Documentation was not provided to show that the policy was uniformly applied and enforced, or in effect at the time of the disaster.

Rationale: The language of the County's RSP policy, which appears to be a guideline rather than a mandatory policy of earthen channel embankment repair, does not meet the requirements of 206.226(b)(4). The date of the County's RSP policy is later than the project approval, therefore, the policy does not meet the requirements of 206.226(b)(3).

Appeal Letter

October 2, 1997

Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, California 95823

Dear Ms. Ward:

This is in response to your April 11, 1997, letter to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of damage survey report (DSR) 28348 under FEMA-1044-DR-CA on behalf of the Contra Costa County Department of Public Works (County). The subgrantee is requesting FEMA pay for restoration of stream banks with rock slope protection (RSP).

The heavy rains and flooding in January 1995, resulted in damage to the Rodeo Creek channel embankment. On March 21, 1995, DSR 28348 was prepared for $11,218 to repair slip-outs. The proposed repairs included the use of rip rap, environmental processing, construction engineering and engineering design. The DSR was reduced to $793.55 because there was no evidence that a County standard or policy required RSP. Further, RSP was not a pre-existing condition of the embankment. The revised estimate was less than $1,000 and ineligible for funding. On January 18, 1996, the first appeal was submitted. The basis of this appeal was FEMA's inconsistent application of their standards and the County's policy of repairing channels with RSP. The Regional Director denied the first appeal because the County's policy primarily provided guidance on general applicability, which may be deviated from or selectively applied. The subgrantee lacked documented justification that engineering, dewatering, environmental processing and traffic control were necessary components of the repair work.

In the second appeal, the subgrantee contends that the County's RSP policy meets the requirements of Title 44 of the Code of Federal Regulations, section 206.226 (b). In response to the first appeal, the Regional Director provided a thorough evaluation of eligibility and policy requirements. While the County's policy provides guidance on RSP, the policy is generally applicable and may be deviated from, or selectively applied, at the discretion of the designated agency or official. Further, the County adopted the policy after the requested funding was found to be ineligible.

We have carefully reviewed the information submitted with the second appeal and the first appeal response, and have determined that the Regional Director's decision is consistent with program regulations and statute. Therefore, I am denying the second appeal.

Please inform the subgrantee of my determination. The applicant may submit a third appeal to the Director of FEMA, the appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate